The St. Johns herald., 1887-12-08

the still further bounty of the gov
 ernment displayed in not only giv-
 ing them the right of way to the
 extent of two hundred feet in width
 and all necessary grounds for sta , tion buildings, etc., for their road,
 but in exempting this right of way | from taxation in the territories of
 the United States; this corporation
 now comes in, by its gifted attorney
 and solicitor, and with great learn
 ing and power of logic, claims ex-
 emption from taxation for all its
 Improvements put upon this right
 off way in Apache county-acknowl-
 edging its liability to pay taxes
 only on seven locomotives, tools,
 supplies, han6cars, etc., and box
 cars and cars used for dining and
 living in. Is this position tenable?
 Whether so or not, candor compels
 the admission, that 1t is assumed
 without subterfuge or evasion. The
 learned counsel for the plaintiff has,
 with forceful confidence, referred us
 to the noted decision of Chief Jus
 tice Wade, of Montana, in the case
 of the Northern Pacific R. R. Go.
 vs. Garland 2d West Coast Repor-
 ter, page S26, and we have carefully noted it's dictum and the numerous
 cases cited therein. Beyond ques- tion this is an able decision, and fully sustains the position of plain
 tiff's solicitor; but we think the learned judge mistakenly assumes
 that the rule of property exemp- tion and the rule of property taxa tion are identical; i. e., that they | are to be construed the same way. In other words, that whatever terms are sufficient, to carry property so as to render it subject to taxa tion, such terms are sufficient, atPst no stronger terms are re- quired to exempt such property from taxation. We are unable to agree with the learned judge in this position. In assuming that the grant by congress of the right of way, to the Northern Pacific R. R. Co.,, through the public lands, car ried with 1t, as an easement, the right to the exclusive possession of the lands described, for the pur- pose of constructing a railroad and telegraph; to make excavations, cuts and fills in the ground to con- struct thereon it's roadbed, and lay ties and rails thereon, and to erect upon such lands, included in said right of way, all buildings, shops, water stations, depots, engine houses, freight houses, etc., as were necessary and suitable to be used in constructing and operating its railroad and in assuming that this railroad,' when thus constructed, becomes of the nature of real prop erty; in all this we agree with him, but We cannot coincide with the conclusion that, because the 2nd | section of the charter of the North ern Pacific R. R. Co.,, exempts its right of way from taxation, there fore it follows that all improve ments put thereon are also exempt. Chief Justice Wade concludes his opinion on this point as follows "The provisions contained in sec. ? of the act Incorporating plaintiff, (the Northern Pacific R. R. Co.,) II that the right of way, shall be exempt from taxation in the territories of the United States, therefore carries with it and ex- empts from taxation in the territo- ries, the roadbed, the ties and rails thereto attached, and all the station buildings, workshops, etc., neces- sary for the construction and for operating said railroad and the assessment of taxation and the levy of tax thereon, of twenty miles of railroad in the County of